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W.R. Grace: Judge Denies Defense Request for Delay of Trial

Despite dishing out stinging criticism to federal prosecutors for their chronic failures to meet pre-trial deadlines, the judge presiding over the trial of W.R. Grace & Co. has denied a motion by defense lawyers asking to delay the trial date by several months.

U.S. District Judge Donald Molloy, in an 18-page order, rebuked the federal prosecution team for being "oblivious to nearly every deadline set in the original scheduling order." But Molloy nevertheless asserts that the year and a half he allotted for discovery and pre-trial motions is sufficient, "particularly when the defendants knew long in advance that an indictment was likely."

"Most defendants are given no more than 70 days to prepare, even in complex, multi-defendant cases," Molloy wrote. "It is a rare case that requires or is granted a year for preparation."

W.R. Grace and seven of its former executives face a 10-count indictment which a grand jury handed down on Feb. 7, 2005 centering on charges that the Columbia, Md.-based company concealed its knowledge of the health hazards of the asbestos-tainted vermiculite that it mined from the mountains northeast of Libby, Mont., and used in its products. (For more, read "Grand Jury Indictment: W.R. Grace Lied About Dangers of Asbestos Exposure.")

The trial is scheduled to begin Sept. 11.

Defense Requested 4-to-6-Month Delay

Attorneys for W.R. Grace had asked Molloy to delay the trial date by 4 to 6 months, arguing that more time was needed to prepare for the trial because of the prosecution's foot-dragging in producing discovery materials and other case-related information.

One example, defense attorneys argue, is that the government failed to meet a court-imposed deadline of Jan. 13 to produce hard copies of thousands of pages of discovery documents. Because of the U.S. prosecution team's apparent stubbornness in "complying with its responsibilities" until ordered by the court, Molloy notes, the prosecution did not meet the deadline.

Instead, the prosecution made the documents available for review on Jan. 13 at a "secure location" in Denver, according to Molloy.

Within days, W.R. Grace's defense attorneys dispatched a team to Denver to review the documents, and after three days of reviewing the documents, the team asked the government to provide copies of most of what was there. The government hired a vendor to copy the materials at the defense's expense.

Molloy contends there are no "legitimate reasons" for the government's "foot-dragging," but he is critical of W.R. Grace's defense team for not hiring more vendors to help speed up the process of copying the materials, and he questions why the defense's document review team only spent 3 days examining the documents in Denver.

"These decisions by the defendants caused them to receive the [materials] much later than they would have otherwise," Molloy wrote, "and therefore weigh in favor of denial of the motion to delay the trial."

Molloy also contends that a delay in the trial would be a "significant inconvenience" to all the other stakeholders in the case.

He notes that more than two dozen expert witnesses and more than 100 lay witnesses presumably have made travel arrangements to testify at the trial this fall, the jury-selection process is underway and the U.S. District Court for the District of Montana has arranged for visiting judges to hear cases on the court's regular docket while Molloy presides over the W.R. Grace trial which he anticipates lasting several months.

Trial Schedule Has Been "Vindicated"

Molloy asserts that the pre-trial schedule and trial date were carefully chosen to "weather any delays brought on by the logistical challenge of processing a huge volume of information and the procedural wrangling that naturally occurs in a case involving eight defendants and dozens of lawyers."

"My purpose in establishing an 18-month trial schedule has been vindicated," Molloy wrote. "Delays have required the adjustment of several of the deadlines set in the original scheduling order. The excess time built into the schedule has served its purpose as a reserve to accommodate the delays and to preserve an orderly advance to the trial."

In the end, Molloy lashes out at both the prosecution and the defense for how they have used the extra pre-trial time he budgeted.

"A predictable pattern has developed in this case," Molloy wrote. "The United States dawdles through its compliance with the court's orders and the defendants overreach in their requests for relief.

" … At some point, there must be a realization that only an immortal has time to examine every grain of sand on the beach. There will be no continuance."